M v M (14/3/2-234/05) [2010] ZAGPJHC 74 (19 February 2010)

M v M (14/3/2-234/05) [2010] ZAGPJHC 74 (19 February 2010)

The court held that the respondent, having adopted the minor child in terms of Xhosa customary law and having acted as a parent for over a decade, is legally obliged to maintain the child. The Constitution, the Maintenance Act, the Child Care Act, and the Children’s Act do not exclude or invalidate customary law adoption. The best interests of the child are paramount, and the development of the common law to recognise maintenance obligations arising from customary law adoption is consistent with constitutional values and public policy. The court found that customary law adoption is an established institution, widely practised and recognised, and that the duty to maintain a child adopted...

Citation
[2010] ZAGPJHC 74
Parties
Applicant: N S R M; Respondent: Z G M
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
19 February 2010
Case Number
14/3/2-234/05
Procedural Posture
Special Review / High Court Review of Magistrate's Maintenance Order
Outcome
The court upheld the Magistrate’s finding that the respondent has a legal duty to maintain the minor child adopted under Xhosa customary law and ordered the registration of the child as the adopted child of both parties.
Judges
Mokgoatlheng
Legal Topics
Customary Law Adoption, Maintenance of Minor Children, Development of Common Law, Best Interests of Child, Constitutional Interpretation
Family and Children Civil Procedure Customary Law Adoption Maintenance of Minor Children Development of Common Law Best Interests of Child Constitutional Interpretation

Case Brief

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Parties

N S R M

Applicant

Z G M

Respondent

Procedural Posture

Special Review / High Court Review of Magistrate's Maintenance Order

Legal Issues

  1. 1 Whether a parent who has adopted a minor child under Xhosa customary law, but not under statutory law, is legally obliged to pay maintenance for the child.
  2. 2 Whether the common law should be developed to recognise a legal duty to maintain a child adopted under customary law.
  3. 3 Whether the Constitution and relevant statutes support the enforceability of maintenance obligations arising from customary law adoption.

Ratio Decidendi

The court held that the respondent, having adopted the minor child in terms of Xhosa customary law and having acted as a parent for over a decade, is legally obliged to maintain the child. The Constitution, the Maintenance Act, the Child Care Act, and the Children’s Act do not exclude or invalidate customary law adoption. The best interests of the child are paramount, and the development of the common law to recognise maintenance obligations arising from customary law adoption is consistent with constitutional values and public policy. The court found that customary law adoption is an established institution, widely practised and recognised, and that the duty to maintain a child adopted...

Court Disposition

The court upheld the Magistrate’s finding that the respondent has a legal duty to maintain the minor child adopted under Xhosa customary law and ordered the registration of the child as the adopted child of both parties.

Orders

  • The Director General of the Department of Home Affairs is ordered to register the minor child J M as the adopted child of N S R M and Z A M in terms of section 2 of the Births and Deaths Registration Act 51 of 1992.
  • The Magistrate is ordered to determine the amount of maintenance to be contributed by the respondent towards the maintenance of the minor child J M.